Case: 18-14632 Date Filed: 10/17/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14632
Non-Argument Calendar
________________________
Agency No. A074-511-273
THUYEN ANH QUACH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 17, 2019)
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Case: 18-14632 Date Filed: 10/17/2019 Page: 2 of 7
Thuyen Quach, a native of Vietnam, petitions for review of a final order
from the Board of Immigration Appeals dismissing his appeal from the
Immigration Judge’s denial of his motion to reopen his removal proceedings and
stay deportation. In his petition, Quach argues that his untimely motion should
have been subject to equitable tolling and that the Board erred in determining that
he failed to demonstrate his prima facie eligibility for cancellation of removal. We
deny the petition for review.
I.
Quach was admitted to the United States as the child of a refugee in June of
1996. On April 22, 2013, the Department of Homeland Security issued a Notice to
Appear to Quach alleging that Quach was subject to removal under INA
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). The Notice to Appear alleged that
Quach had been convicted twice in Georgia courts for possession of marijuana.
On July 1, 2013, Quach appeared before an Immigration Judge and admitted
the factual allegations contained in the Notice to Appear. The Immigration Judge
found that Quach was subject to removal, but advised Quach that he might be
eligible for certain forms of relief. Quach informed the court that he did not wish
to pursue that relief and asked the court to order his removal. The Immigration
Judge ordered Quach deported to Vietnam. Quach did not appeal the decision to
the Board.
2
Case: 18-14632 Date Filed: 10/17/2019 Page: 3 of 7
On December 19, 2017, Quach filed an emergency motion to stay his
removal. 1 In his motion, Quach attempted to explain his delay in seeking relief by
arguing that he had not been “present” at his previous hearing because he was not
represented by counsel at the hearing.
On January 9, 2018, the Immigration Judge denied the motion. In light of
the substance of Quach’s motion, the Immigration Judge chose to construe the
motion as both an emergency motion to stay and a motion to reopen his removal
proceedings. The Immigration Judge concluded that Quach’s motion, filed over
four years after his initial hearing, was untimely. The Immigration Judge noted
that Quach had been present at his earlier hearing, whether or not he was
represented by counsel. The Immigration Judge stressed that Quach had been
informed of his rights and still had “repeatedly asked” for the Immigration Judge to
enter an order of removal, despite both the Immigration Judge and the government
informing Quach “that he appeared eligible for relief from removal.” 2 The
Immigration Judge also concluded that Quach’s motion was procedurally deficient
because: (1) it not did contain his application for cancellation of removal; and (2) it
did not specify which new and material facts would be proven if he were granted a
hearing. The Immigration Judge declined to reopen proceedings sua sponte.
1
Quach was deported to Vietnam shortly thereafter.
2
The Immigration Judge summarized the prior proceedings, which were recorded via a digital
audio recording system.
3
Case: 18-14632 Date Filed: 10/17/2019 Page: 4 of 7
On February 6, 2018, Quach filed an appeal with the Board, arguing that his
motion to reopen should not be considered untimely because it presented material
facts that were not available at the time of his original proceedings. Those facts
included that his mother had been diagnosed with cancer and that his deceased
father had served in the United States military. On October 12, 2018, the Board
dismissed his appeal. The Board agreed with the Immigration Judge that Quach’s
petition was untimely and procedurally deficient. The Board also found that
Quach had failed to introduce evidence to support prima facia eligibility for the
requested relief (such as proof that he had resided in the United States continuously
for seven years).
Quach appeals, arguing that he provided “new evidence” of his mother’s
cancer diagnosis and his father’s military service. He argues that the other
evidence he provided—such as his permanent resident card, Notice to Appear, and
conviction documents—demonstrated that he was eligible for cancellation of
removal. Quach also argues that his motion to reopen should have been equitably
tolled because he was only 19 years old and without counsel at the time of his
master calendar hearing and, therefore, did not understand the nature of the
proceedings against him or that a removal order had been issued. Finally, Quach
argues that the Board erred because, without a transcript of the hearing, the record
4
Case: 18-14632 Date Filed: 10/17/2019 Page: 5 of 7
failed to show that the Immigration Judge had fully explained his right to apply for
certain relief from removal or that he understood the nature of his rights.
II.
We review the denial of a motion to reopen removal proceedings for abuse
of discretion, which is limited to the determination of whether the Board exercised
its discretion in a “arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen., 568
F.3d 1252, 1256 (11th Cir. 2009) (citations omitted). If the Board’s decision was
based on a legal determination, then we review the decision de novo. Li v. U.S.
Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). We review only the ultimate
decision by the Board, except to the extent that the Board has expressly adopted
the Immigration Judge’s opinion or reasoning. Jiang, 568 F.3d at 1256 (citing Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)). We may only review
fully exhausted claims, which must have been brought before the Board for
consideration. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
III.
Ordinarily, an alien must file a motion to reopen his removal proceedings
within 90 days of the final order of removal. 8 C.F.R. § 1003.23(b)(1); see also
Jiang, 568 F.3d at 1254. The 90-day filing time limitation on motions to reopen is
non-jurisdictional and subject to equitable tolling. Avila-Santoyo v. U.S. Att’y
5
Case: 18-14632 Date Filed: 10/17/2019 Page: 6 of 7
Gen., 713 F.3d 1357, 1363 (11th Cir. 2013) (en banc). To show that equitable
tolling is warranted, an alien must demonstrate that: (1) he has been pursuing his
rights diligently, and (2) some extraordinary circumstance stood in his way. Id. at
1363 n.5.
The Board did not abuse its discretion when it dismissed Quach’s appeal
from the IJ’s denial of his motion to reopen. First, to the extent Quach exhausted
his argument before the Board on timeliness, the Board did not abuse its discretion
when it found Quach’s motion to reopen was untimely. Quach’s motion was filed
over four years after the Immigration Judge’s decision ordering his removal to
Vietnam—long after the 90-day filing limitation for a motion to reopen had passed.
Before the Board, Quach’s sole argument to excuse this delay was that he had
come into possession of facts that would warrant reopening under 8 C.F.R.
§ 1003.23(b)(3). See id. (explaining that a motion to reopen must state the new
and material facts to be proven). But even if we assume that Quach had new
evidence, he still does not assert that he qualifies for any of the exceptions to the
timeliness requirement. See C.F.R. § 1003.23(b)(4) (explaining that certain claims,
such as a claim of changed country conditions when a respondent is seeking
asylum, are not subject to the 90-day requirement). The Board therefore did not
abuse its discretion in concluding that Quach’s motion was time-barred.
6
Case: 18-14632 Date Filed: 10/17/2019 Page: 7 of 7
In his petition for review, Quach argues that his motion should have been
subject to equitable tolling. Quach did not make this argument to the Board. “We
lack jurisdiction to consider a claim raised in a petition for review unless the
petitioner has exhausted his administrative remedies with respect thereto.” Amaya-
Artunduaga, 463 F.3d at 1250. To exhaust a claim, a petitioner must not only raise
the “core issue” before the BIA, but “also set out any discrete arguments he relies
on in support of that claim.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir.
2016) (citations omitted). Because Quach failed to make any discrete arguments
regarding equitable tolling, we lack jurisdiction to consider that claim. We also
lack jurisdiction to consider whether the Board erred in declining to reopen
Quach’s proceedings in its own discretion. See Lenis v. U.S. Att’y Gen., 525 F.3d
1291, 1294 (11th Cir. 2008) (holding that we lack jurisdiction to review “the BIA’s
decision whether to reopen proceedings on its own motion pursuant to 8 C.F.R.
§ 1003.2(a)” as that decision “is committed to agency discretion by law”). We
thus must deny his petition.
PETITION DENIED.
7